Punjab-Haryana High Court
Hari Chand vs Gram Panchayat on 28 November, 1995
Equivalent citations: (1996)112PLR590
JUDGMENT N.K. Kapoor, J.
1. This judgment shall dispose of Civil Writ Petition No. 5057 of 1992 and Regular Second Appeal Nos. 354 to 356 of 1985 as the question of law and fact involved in these cases is identical.
2. Petitioners seeks issuance of a writ of certiorari or any other appropriate writ, order or direction for quashing of the order passed by the Assistant Collector 1st Grade, Annexure P-13 and the Collector, Annexure P-14 as well as resolution of the Gram Panchayat, Annexure P-15. Briefly put, it is the case of the petitioners thai Hari Chand petitioner purchased 6 kanals 16 Marias of laud for a sum of Rs. 2550/- in open auction held on 1.5.1966. He paid a sum of Rs. 637.50 on the spot as 1/4th share of the total sale consideration vide receipt No. 47 dated 1.5.1966, Annexure P-l, and the remaining sale consideration was paid by him vide receipt dated 13.7.66 Annexure P-2. A sale deed Annexure P-3 was executed between the parties. Likewise, Shanu Ram too purchased 4 Kanals of land, paid 1/4th price at the spot vide Annexure P-4 and remaining amount vide Annexure P-5 and a sale deed was executed in his favour. Similarly, Arjan Dev purchased 5 Kanals and 17 marlas of land vide documents Annexures P-7 and P-8 and in his case also sale deed was executed. Another brother of the petitioner also purchased four Kanals of land vide documents Annexures P-10 to P-12 which property fell to the share of Hari Chand in a family settlement who is stated to be cultivating the same since the date he became its absolute owner. Thakar Dass petitioner No.4 purchased plot measuring 40 Marias comprised in Khasra No. 668 from one Dharam Chand s/o Beg Ram who had earlier purchased the same from the contesting respondent in open auction. He also purchased another plot comprised in Khasra No. 668 from one Smt. Ashawanti. This way he too is in possession of the aforesaid area purchased as owner. It is the case of the petitioners that despite the fact that they have paid full price of the land purchased way back in the year 1966, yet the Gram Panchayat without any legal basis sought eviction of the petitioners under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') which prayer has been illegally granted by the prescribed authority and further appeal filed by the petitioners too met with same fate. The petitioners have thus challenged the order of prescribed authority - Annexure P-13, order of the Collector Annexure P-14 and the resolution dated 19.3.1992,.Annexure P-15, terming these to be wholly illegal, arbitrary, against law and material on record on the ground (i) no proper, service was effected upon Hari Chand and so the proceedings conducted against him are nonest; (ii) that petitioners No. 1 to 3 are bona fide purchasers for value, having paid the whole amount of consideration way back in the year 1966 and in possession of the same as owner and so the eviction proceedings under Section 7 of the Act were wholly unwarranted; (iii) that question of title having been raised by the petitioners, it was incumbent upon the concerned authority to refer the same for adjudication in terms of Section 13-A of the Act; and (iv) that the orders are cryptic and non speaking.
3. The writ petition was admitted and it was ordered to be heard alongwith Regular Second Appeal Nos. 354, 355 and 356 of 1985 within a year and petitioners dispossession was stayed vide order dated 5.5.1992.
4. Pursuance to the notice issued by the Court, respondent Gram Panchayat put in appearance and filed written statement in the form of affidavit of Chander Bhan, Member Panchayat, Gram Panchayat, Rania. The respondent in his reply has termed the various transactions set up by the petitioners in support of their claims to be wholly illegal and void. According to the respondent, Gram Panchayat could not sell the land to the petitioners even with the approval of the government, although in the case of the petitioners, the Gram Panchayat had not even obtained the approval of the government. According to the respondent, as per Section 5 of the Act, Gram Panchayat can utilise or dispose of the land vested in it " for the benefit of inhabitants of the village concerned in the manner prescribed". Rule 12 of the Punjab Village Common Land (Regulation) Rules, 1964 (for short 'the Rules') describes the manner in which the land in shamlat deh can be sold for the purposes enumerated therein. Thus, as there has been non-compliance of the provisions of the Act as well as the Rules, the petitioners did not acquire any right and hence the petition is wholly misconceived. It was further asserted that no sale deed was executed by the answering respondent in favour of the alleged vendees. Replying to the averments made in the petition that the regular second appeal filed by the petitioners has been admitted, he denied the same for want of knowledge. Regarding possession of the petitioners over the disputed land, it was stated that the answering respondent has already taken possession of the land in dispute on 17.9.1989 vide rapat roznamcha No. 21 of the same date. The order passed by the Assistant Collector 1st Grade, Annexure P-13 and the order passed by the Collector, Annexure P-14, was defended Other averments made by the petitioners with regard to the non service upon them or that they had raised some question of title has been refuted. It has been further stated that admission of regular second appeal has no bearing on the point in controversy. Otherwise too, regular second appeals are likely to be dismissed. It was thus prayed that the petition deserves to be dismissed and same may be dismissed.
5. Seeking vacation of the ex parte order dated 5.5.1992 respondent Gram Panchayat filed an application dated 30.5.1994 stating therein that gram panchayat has already taken possession of the land in dispute on 17.9.1989. Notice of this application was issued to the petitioners through their counsel who despite having been granted 2-3 opportunities did not file any reply and so the Court after hearing the counsel for the parties, ordered for vacation of the ex parte stay order vide order dated November 21, 1994.
6. Subsequently, an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure was filed by the Administrator, Municipal Committee, Rania, for substitution in place of Gram Panchayat, Rania. In this application, it was stated that in view of notification dated 28.9.1992 the entire area of Gram Panchayat, Rania, has been included within the Municipal limits of Municipal Committee, Rania and all the assets and liabilities of the erstwhile Gram Panchayat now vests in the Municipal Committee, Rania, and so the applicant Municipal Committee, Rania, deserves to be substituted in place of Gram Panchayat, Rania. This application was duly supported by an affidavit as well as copy of the notification dated 28.9.1992. This application was allowed by the Court vide order dated 13.9.1994. The Court also noticed that the Municipal Committee, Rania, agreed to adopt the written statement filed by the Gram Panchayat.
7. Challenging the order of the Assistant Collector 1st Grade and the Collector, Annexures P-13 and P-14 respectively, the counsel for the petitioners argued that application Under Section 7(2) of the Act, in fact, was wholly misconceived as the Gram Panchayat was not the owner of the property in dispute. Elaborating, the counsel made reference to the auction held way back in the year 1966, payment of the amount by the petitioners as well as execution of the sale deed by the Sarpanch. l/4th of the money was deposited at the fail of hammer at the time of auction and the remaining 3/4th amount has been deposited by the petitioners as reflected in the receipts issued by the Gram Panchayat in this regard i.e. to say that whole of the consideration amount already stands credited to the gram panchayat of the village. This being so, the gram panchayat had no right, title or interest to initiate proceedings for eviction of the petitioners in terms of Section 7 of the Act. Even if it be taken that since the sale deed/sale deeds have not been executed in favour of the petitioners, yet the petitioners are legally entitled to protect their possession in terms of Section 53-A of the Transfer of Property Act. Otherwise too, precise objection had been raised by the petitioners in reply to the petition filed by the Gram Panchayat under Section 7(2) of the Act which by itself constitute 'a question of title' which ought to have been examined by the Collector in terms of Section 13-A of the Act. Various judicial pronouncements of this Court are consistent that as and when a question of title is raised, the prescribed authority under Section 7 of the Act is to stay off his hands and leave the matter for its adjudication to the Collector who is to adjudicate upon the same after framing appropriate issues and permitting the parties to adduce evidence. Thus the decision of the Assistant Collector 1st. Grade as well as the Collector deserves to be set aside on this ground alone. Lastly, the counsel argued that admittedly the petitioners had not been paying any rent or lease money since the date of alleged purchase by them in open auction. Thus, their status was neither that of a lessee or a tenant holding over. In fact, they have perfected their title on account of their uninterrupted long possession without payment of any rent. Briefly making mention of the connected regular second appeals, the counsel argued that the Courts below have, in fact, erred in law in not decreeing the suit of the plaintiff in toto despite there being ample evidence on record to prove that they had acquired ownership right on the basis of sale deed (though not registered) and so the appeals also deserve to be allowed.
8. The counsel for the respondents, on the other hand, argued that the so called payment of auction amount or deposit of the remaining sale consideration does not create any title or interest in favour of the petitioners. In fact, the action of the gram panchayat was wholly without authority and so the same does not confer any right upon the petitioners nor protect them in any manner.In fact, this was a collusive act between the erstwhile Sarpanch and the petitioners thereby not debarring the gram panchayat from evicting these unauthorised occupants. Otherwise too, such a sale does not come within the purview of Section 5 read with 15(2)(f) of the Act and Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964. The petitioners are otherwise suppressing the true facts from the Courts. At the time of admission whereas the fact of admission of regular second appeals was brought to the notice of the Bench but the factum of their dispossession on 17.9.1989 was withheld and so the Division Bench ordered stay of their dispossession on 5.5.1992. It is precisely for this reason that replication to written statement was not filed by the petitioners and that even subsequent application seeking vacation of the stay order was not replied by the petitioners and so the Court vacated the ex parte stay granted on 5.5.1992. Thus, the petitioners were aware of their complicity with the erstwhile Sarpanch and hence took no active steps to get the sale deeds registered during all these years. The gram panchayat had no authority to sell the land subject matter of sale and that too violating the norms as laid down in the rules. Even the regular second appeals are devoid of any substance. In these set of appeals, each of the petitioners No. 1 to 3 has sought a declaration that he is owner in possession, on the basis of the sale deed/sale deeds and that the defendants be restrained from interfering in their possession. The trial Court after considering the evidence found no substance and so dismissed the suit and the appellate Court partly modified the judgment and decree of the trial Court holding that the plaintiff is in possession of the suit property. Other contentions raised by the appellant were repelled. Since admittedly there is no registered sale deed in favour of the plaintiffs, any alleged payment made by them cannot clothe them with the right of ownership and so the appeals also deserves to be dismissed. The petition does not disclose any question of title necessitating a fresh adjudication. The gram panchayat has ceased to be owner of the property in view of notification dated 28.9.1992 and so the writ petition being devoid of any substance and deserves to be dismissed.
9. Factual aspects leading to the filing of the suit by the petitioners No. 1 to 3 individually and the present writ petition collectively have been briefly noticed i.e. the claim of the petitioners on the basis of payment of sale consideration and the execution of the sale deeds by the gram panchayat (separately in favour of petitioners No. 1, 2 and 3) and the order of eviction passed by the Collector, Annexure P-13, and the order of the Collector, Annexure P-14. Payment of auction amount on 1.5.1966 as well as the remaining 3/4th amount has not been specifically denied and so can be taken to have been admitted. Whether such an act constitute a valid transaction conferring ownership rights upon a person who had performed his part of the contract? Ancillary to the same is the question whether the Gram Panchayat could or could not execute any such sale deed or enter into any such agreement without prior approval of the authorities as mentioned in the Act/Rules?. Lastly, whether such a document would constitute a question of title to be determined by the authority by constituting itself into a Court ? It has been asserted by writ petitioners that the pendency of the regular second Appeals in the High Court was brought to the notice of the Collector at the time of the final hearing Para 13(i) of the writ petition was not specifically denied by the answering respondent. Unfortunately, the order does not make mention of the same. Section 7 of the Act authorizes the Assistant Collector 1st Grade either suo moto or on an application made by the Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer and Social Education and Panchayat Officer to eject a person who is in wrongful or unauthorized possession of land or other immovable property which vests in shamlat deh of the village. It further envisages that in case any question of title is raised and prima facie proved, it shall determine such question of title. Examined in the context of facts as have been on record, neither the prescribed authority while deciding the application under Section 7(2) of the Act nor the Collector while hearing/deciding the appeal have eared to refer to these assertions or to the record of Gram Panchayat while discarding the evidence of the petitioners and so both these orders deserves to be set aside on this ground alone. No doubt, Act envisages a speedy disposal of petition under Section 7 of the Act; but a summary disposal does not imply non consideration of documents which have bearing upon the point under enquiry. In the present case, petitioners No.1 to 3 claim themselves to have become owner on the basis of sale deed duly executed by Gram Panchayat (as they had paid the sale consideration as reflected in the gram panchayat record); this plea prima facie raises a question of title and ought to have been decided by the authorities before ordering their eviction. Thus, I accept the writ petition, set aside the order of the prescribed authority, Annexure P-13, as well as of the Collector, Annexure P-14, and remand the case to the prescribed authority. The concerned authority shall go into the legality of auction; acceptance of sale consideration and other related issues in the light of provisions of the Act and the Rules and also keep in mind the fact that petitioners have remained in occupation of the land on the basis of so called 'sale' till their eviction in 1989 and thereafter pass such order/orders which it deems proper/equitable in the context of the case.
10. Since the petitioners have been dispossessed, the concerned authority is directed to expeditiously dispose of the case; preferably within six months from the receipt of the order of tike Court.
11. Regular second appeals No. 354 to 356 of 1985 consequently stand disposed of. No costs.